Agreement for the Provision of Independent Advocacyservices

Agreement for the Provision of Independent AdvocacyServices

(Contract Ref 904-2017)

Hartlepool Borough Council

Independent Advocacy Services

Contract Particulars

Contract title / Agreement for the Provision of Independent Advocacy Services including:

• General Advocacy services
• Independent Mental Capacity Advocacy services (IMCA)
• Independent Mental Health Advocacy services (IMHA)

Commencement Date / 1 June 2017
Contract Period (including option to extend) / 36 months until 31 May 2020plus with an option to extend on a rolling basis until 31 May 2022
To be called off by referral by relevant Purchasing Authority / Yes
Services, Goods or Works / Services
Specification or description / Advocacy services including IMCA, IMHA and General Advocacy.
Address for Notice / Any notice to the Council shall be sent to the Director of Social Services at the Council’s address.
Price / See attached FinancialSchedule
Provider / Means,XXXXXXXXXXXXXXXX
Delivery Instructions / Expected standards of service and service delivery is more particularly described in the Service Specification
Council authorised officer
Name / Position / Contact details
Contractor Manager
Provider NAME
ADDRESS / TEL NO HOME:
MOB NO:
XXXX
Contractor Key Personnel XXXXXXXXXXXXXXXXXX
Insurance
Insurance type / Minimum level
Public liability insurance / £10 Million
Professional indemnity insurance / £2 Million
[Employers liability £10 million] / £5 Million

HARTLEPOOL BOROUGH COUNCIL

Agreement for the Provision of Independent Advocacy Services

Terms and Conditions of Contract for the Purchase of Services

Contents

ClauseHeading

Standard Terms and Conditions of Contract...... 8

Part A - operative provisions...... 8

A1.Definitions...... 8

A2Headings...... 12

A3Notices...... 1

A4Entire agreement...... 1

Part B - Provision of Services...... 14

B1Contract Period...... 14

B2Performance...... 14

B3Contract Manager...... 14

B4Referral process...... 15

B5Warranty...... 15

B6Workforce...... 16

Part C - Price and payment...... 18

C1Price and payment...... 18

Part D - Termination and consequences of termination...... 19

D1Termination...... 19

D2Consequences of termination...... 19

D3Dispute resolution procedure...... 20

D4Survival...... 21

Part E - Insurance and Liabilities...... 22

E1Insurance...... 22

E2Indemnity and liability...... 22

Part F - protection of information...... 24

F1Intellectual property...... 24

F2. DataProtection Act...... 24

F3Freedom of Information...... 24

F4Confidentiality...... 26

F5Record keeping and monitoring...... 27

Part G - Statutory obligations...... 28

G1Health and safety...... 28

G2Corporate requirements...... 28

G3Law and Change in Law...... 28

G4TUPE and re-tendering...... 29

Part H - General provisions...... 30

H1Contract variation...... 30

H2Third party rights...... 30

H3No waiver...... 30

H4Severance...... 30

H5Assignment, sub-contracting and responsibility...... 30

H6Force Majeure...... 31

H7Inducements...... 32

H8Costs and expenses...... 32

H9No agency or partnership...... 32

H10Non solicitation and offers of employment...... 32

H11Inspection of Provider’s premises...... 33

H12Law and jurisdiction...... 33

H13Counterpart...... 33

Part A – Schedules
First Schedule / Financial
Second Schedule / Contract Manager
Part 2 / Service Specification
Appendix A
Appendix B
Appendix C
Appendix D
Appendix E

1

Part A– OPERATIVE PROVISIONS

A1Definitions

The terms and expressions used in these Standard Terms and Conditions shall have the meanings set out below:

‘Authorised Officer’ / the person duly appointed by the Council and notified in writing to the Provider to act as the representative of the Council for the purpose of the Contract in the Contract Particulars or as amended from time-to-time and in default of such notification the Council’s head of procurement or similar responsible officer.
‘Business Day’ / any day other than a Saturday or Sunday or a public or bank holiday in England.
‘Change in Law’ / the coming into effect or repeal (without reenactment or consolidation) in England of any law, or any amendment or variation to any law, or any judgement of a relevant court of law which changes binding precedent in England in each case after the date of this Contract.
‘Commencement Date’ / the commencement date stated in the Contract Particulars.
‘Commercially Sensitive Information’ / the information comprising the information of a commercially sensitive nature relating to the Provider, its Intellectual Property Rights or its business or which the Provider has indicated to the Council that, if disclosed by the Council, would cause the Provider significant commercial disadvantage or material financial loss.
’Confidential Information’ / any information which has been designated as confidential by either party in writing or that ought to be considered as confidential (however it is conveyed or on whatever media it is stored). This includes information which relates to the Services, the business, affairs, properties, assets, trading practices, developments, trade secrets, Intellectual Property Rights, know-how, personnel, customers and suppliers of either party, all personal data and sensitive personal data (within the meaning of the DPA).
‘Contract’ / the agreement in respect of the provision of the Services consisting of the following listed documents which shall be read as one document. In the event of ambiguity, conflict or contradictions between these documents the conflict will be resolved according to the following order of priority.

1. The Contract Particulars.

1. The Terms and Conditions and any Schedules thereto.

1. The Financial Schedule to this Agreement

1. The Service Specification and any Appendices thereto.

’Contract Manager’ / the person named in the Contract Particulars as the Contract Manager and any replacement from time-to-time in accordance with clause B3.2.
‘Contract Particulars’ / the document detailing the specific core terms agreed between the parties with regard to the Services which shall include but not be limited to Commencement Date, authorised officer, Contract Manager, Commercially Sensitive Information, Contract Period, and the Specification and where applicable, relevant Contract specific details of the tender included in the document.
‘Contract Period’ / the period of the Contract as stated in the Contract Particulars
‘Control’ / control as defined by section 416 of the Income and Corporation Taxes Act 1988.
‘Council’ / the Council named in the Contract Particulars and where the context so admits includes any person which takes over or assumes the statutory functions or administrative responsibilities of the Council (whether in part or totally) or which is controlled by or is under common control with the Council (and the expression ‘control’ shall mean the power to direct or cause the direction of the general management and policies of the person in question but only for so long as such control exists).
’DPA’ / The Data Protection Act 1998.
“Disclosure Scotland” / Means the non-departmental public body (including any successor bodies or organisations)established under the Safeguarding Vulnerable Groups Act 2006 (as amended) to enhance current safe recruitment practices by ensuring as far as possible that unsuitable people are prevented from working with children and vulnerable adults.
‘EIR’ / The Environmental Information Regulations 2004.
’Financial Schedule / the schedule to the Agreement that provides details relating to payment by the Council for the provision of the Service
‘FOIA’ / The Freedom of Information Act 2000.
‘Force Majeure’ / any cause materially affecting the performance by a party of its obligations under this Contract arising from any act beyond its reasonable control and affecting either party. This includes without limitation: acts of God, war, industrial action (subject to clause H6.3), protests, fire, flood, storm, tempest, epidemic, explosion, acts of terrorism and national emergencies.
‘Good Industry Practice’ / the exercise of such degree of skill, diligence, care and foresight which would reasonably and ordinarily be expected from a skilled and experienced Provider engaged in the supply of Services similar to the Services under the same or similar circumstances as those applicable to the Contract.
‘HRA’ / The Human Rights Act 1998.
‘Information’ / has the meaning given under section 84 of the Freedom of Information Act 2000.
‘Intellectual Property Rights’ / patents, inventions, trade marks, service
marks, logos, design rights (whether registrable or otherwise), applications for any of the foregoing, copyright, database rights, domain names, trade or business names, moral rights and other similar rights or obligations whether registrable or not in any country (including but not limited to the United Kingdom) and the right to sue for passing off.
‘Key Personnel’ / those persons named in the Contract Particulars as being key personnel and any replacement from time-to-time under clauseB5.1.5 and B5.1.6
‘Key Personnel Professional Summary’ / the document provided by the Provider to the Council prior to contract commencement. The Key Personnel Professional Summary details the Key Personnel’s professional background and will be used by the Hub to select the most appropriate Advocate from the framework of providers in accordance with clause B4.
‘Law’ / any applicable Act of Parliament, sub-ordinate legislation within the meaning of section 21(1) of the Interpretation Act 1978, exercise of the Royal Prerogative, enforceable community right within the meaning of section 2 of the European Communities Act 1972, bye-law, regulatory policy, guidance or industry code, judgement of a relevant court of law, or directives or requirements of any regulatory body of which the Provider is bound to comply.
‘Liabilities’ / all costs, actions, demands, expenses, losses, damages, claims, proceedings, awards, fines, orders and other liabilities (including reasonable legal and other professional fees and expenses) whenever arising or brought.
‘Price’ / the price of the Services as set out in the Financial Schedule to this Agreement unless otherwise stated, any reference to price shall be regarded as being exclusive of properly chargeable VAT which shall be separately accounted for.
‘Provider’ / the Provider and where applicable this shall include the Provider's employees, (including any permitted sub-contractors, agents, representatives, and if the Provider is a consortium or consortium leader, the consortium members). For the avoidance of doubt the Provider may be an organisation or an individual where the latter is true, the Council will seek to confirm that the terms of this Agreement are being met in relation to the workforce requirements.
‘Purchasing Authority’ / Means Hartlepool Borough Council
‘Referral’ / an order for Services to be provided where the Contract is identified in the Contract Particulars to be delivered by call off from the framework
’Replacement Provider’ / any company, organisation or person who replaces the Provider following termination or expiry of all or part of this Contract
‘Request for Information’ / a request for information or an apparent request under the Code of Practice on Access to Government Information, FOIA or the EIR.
‘Services’ / the services described in the Specification to be supplied by the Provider in accordance with the Contract, together with all associated documentation provided by the Provider in relation to those Services.
‘Specification’ / the specification included in the Contract Particulars setting out the Council's detailed requirements in relation to the Services.
‘Terms and Conditions” / the terms and conditions set out in this document.
‘TUPE’ / The Transfer of Undertakings (Protection of Employment) Regulations 2006.

A1.1Any reference to a person shall include any natural person, partnership, joint venture, body corporate, incorporated association, government, governmental agency, persons having a joint or common interest, or any other legal or commercial entity or undertakings.

A1.2A reference to any statute, order, regulation or similar instrument shall be construed as a reference to the statute, order, regulation or instrument as amended by any subsequent statute, order, regulation or instrument or as contained in any subsequent re-enactment.

A2Headings

A2.1The index and headings to the clauses and appendices to and schedules of this Contract are for convenience only and will not affect its construction or interpretation.

A3Notices

A3.1Any notice required by this Contract to be given by either party to the other shall be in writing and shall be served personally, by fax or by sending it by registered post or recorded delivery to the appropriate address, fax number or email address notified to each other as set out in the Contract Particulars.

A3.2Any notice serviced will be deemed to have been served as follows:

A3.2.1Any notice served personally will be deemed to have been served on the day of delivery;

A3.2.2Any notice sent by post will be deemed to have been served 48 hours after it was posted;

A3.2.3Any notice sent by fax will be deemed to have been served 24 hoursafter it was despatched;

A3.2.4Any notice sent by email before 5 p.m. will be deemed to have been served on the day of despatch and otherwise on the following day save where the deemed date of service falls on a day other than a Business Day in which case the date of service will be the following Business Day.

A4Entire agreement

A4.1The Contract constitutes the entire agreement between the parties relating to the subject matter of the Contract. The Contract supersedes all prior negotiations, representations and undertakings, whether written or oral, except that this clause A4 shall not exclude liability in respect of any fraudulent misrepresentation.

1

Part b – PROVISION OF SERVICES

B1CONTRACT PERIOD

B1.1The Contract shall commence on the Commencement Date and subject to clause B1.2 shall continue for the Contract Period.

B1.2If the Contract Period includes an option to extend and the Council intends to take up the option, the Provider shall be notified in writing within the period stated in the Contract Particulars prior to the commencement of the extension. If no such notification is issued the Contract shall automatically expire after the initial Contract Period.

B2Performance

B2.1The Services shall be provided in accordance with any delivery instructions contained within the Service Specification.

B2.2The time of the delivery of the Services is of essence to the Contract.

B2.3The Council will have the right to observe the Provider’s performance of the Services if the Services are not being performed on the Council’s premises.

B2.4If the Provider at any time becomes aware of any act or omission, or proposed act or omission by the Council which prevents or hinders, or may prevent or hinder the Provider from performing the Services in accordance with the Contract; the Provider shall inform the Council and the Council may, at its absolute discretion, extend the period of the Contract accordingly.

B2.5If the Provider at any time becomes aware of any material matter that could affect the performance of the Services in accordance with the Contract, the Provider shall inform the Council immediately.

B2.6If the Provider has a change in Control, the Provider shall inform the Council as soon as reasonably practicable.

B2.7The Council retains the Provider for the performance of the Services on a non exclusive basis.

B2.8 The Provider must complete and regularly update “Hartlepool Now”, with information and advice about the Service.

B3Contract Manager

B3.1The Provider shall employ a competent and authorised Contract Manager empowered to act on behalf of the Provider for all purposes connected with the Contract where the Provider is an individual the Contract Manager shall be the person who has signed the Agreement at the Fourth Schedule as subject to clause H13.

B3.2The Provider shall give notice in writing to the Council at once of any change in the identity, address and telephone numbers of the person appointed as Contract Manager. The Provider shall give maximum possible notice to the Council before changing its Contract Manager.

B4Referral process

B4.1Referrals will be made to the providers in accordance with an Allocations Procedureto be appended to this agreement.

B4.2The Council will retain absolute discretion regarding which provider and member of Key Personnel is selected to receive a referral.

B4.3The Council does not guarantee to purchase the Service.

B5Warranty

B5.1The Provider warrants to the Council that the Services will be provided as follows:

B5.1.1in a proper, skilful and workmanlike manner;

B5.1.2by appropriately qualified, trained and experienced personnel with a high standard of skill, care and due diligence and in accordance with Good Industry Practice;

B5.1.3in accordance with the Contract and any descriptions provided by the Provider;

B5.1.4to the reasonable satisfaction of the Authorised Officer;

B5.1.5by Key Personnel (if any) who shall not be released from providing the Services permanently without the written agreement of the Council, except by reason of:

B5.1.5.1sickness;

B5.1.5.2maternity leave;

B5.1.5.3paternity leave;

B5.1.5.4termination of employment;

B5.1.5.5request by the Council;

B5.1.5.6the element of the Services in respect of which the individual was engaged has been completed to the Council’s satisfaction; or

B5.1.5.7other extenuating circumstances explained to the Council; and

B5.1.6Any replacements (or additions of new staff) to the Key Personnel shall be subject to the agreement of the Council and such replacements shall be of at least equal status or of equivalent experience and skills to the Key Personnel being replaced and be suitable for the responsibilities of that person in relation to the Services. The cost of effecting such replacement shall be borne by the Provider; and

B5.1.7in a way that the Provider takes every reasonable precaution to safeguard the Council’s property entrusted to the care of the Provider.

B5.2Without prejudice to the Council’s rights to terminate under clause D1 (Termination), if any of the Services supplied are not in accordance with the Contract, the Council shall be entitled to:

B5.2.1require the Provider to provide replacement Services in accordance with the Contract as soon as reasonably practicable and in any event within fourteen (14) days of a request to do so; or

B5.2.2subject to clause E2 (Indemnity and liability) require repayment of the proportion of the Price which has been paid in respect of such Services together with payment of any additional expenditure over and above the Price reasonably incurred by the Council in obtaining replacement Services.

B6.WORKFORCE

B6.1The Provider shall at all times exercise good faith in its dealings with the Council and shall exercise reasonable care and due diligence in the recruitment and appointment of Employees and Prospective Employees who possess sufficient ability, knowledge, experience and appropriate qualifications to meet the needs of anyone accessing the Service. The Provider shall, at the reasonable request of the Council, provide references as to previous employment of all Employees and Prospective Employees obtained prior to their engagement under the terms of this Agreement. Character references should be obtained for Employees and Prospective Employees who have not previously been in the employment of the Provider.

B6.2The Provider shall operate a strict recruitment and selection policy to ensure all Employees and Prospective Employees possess the appropriate ability, knowledge, experience and qualifications to provide the Service and shall provide the Council with a copy of such policy at the Council’s reasonable request.

B6.3The Provider shall employ a sufficient number of Employees and engage a sufficient number of Prospective Employees to ensure that the Service is provided at all times including bank and public holidays, Employee and Prospective Employee holidays, illnesses or any other absence and in all other respects to meet the Specification requirements and shall provide adequate training and supervision for those Employees and Prospective Employees who may be used in the provision of the Service. The Provider must maintain an up to date record of the supervision and training provided to each and every Employee and Prospective Employee and make this available for inspection by the Contracts Officer upon request.